Thoughts of an activist lawyer

Game On! ITLoS President Appoints Second Arbitrator in Philippines-China Arbitration

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward. International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS. President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now. It seems likely that they will continue to ignore the arbitration and question its propriety. But China can no longer claim that the arbitration cannot proceed without China’s participation. This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators. It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed. As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”. The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS. If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins. But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.